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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Failed IS-ESA conversion—if partner claims ESA instead what happens if appeal successful?

Mary Ward PLE project
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Mary Ward Legal Centre

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Client is receiving IS on sickness grounds at couple rate and fails ESA medical this year. 
We request mandatory reconsideration and explain about benefit options while awaiting MR decision. But we’re not sure what to advise about who should claim what at this point.

Client’s partner was on single person ESA until moving in with client mid 2014 (more than 12 weeks ago).
It was financially better option for them that our client (woman) continued to get IS (at couple rate with disability premium), rather than for him to claim ESA for couple (with only one WRAG component).  I don’t know whether they were specifically advised about this or it just happened - they weren’t in touch with us at that point.

So now they have two options until MR notified -
1) she can claim JSA (will be difficult in light of her health conditions), or
2) partner gets med cert and makes new claim for ESA for both of them.

We were initially attracted to the idea of partner claiming ESA, but we are concerned at what might happen if her eventual IS-ESA conversion appeal is successful.
If appeal is successful, she would be awarded ESA (from the effective date of conversion) and that would include a transitional addition (as couple rate IS with DP higher than ESA with WRAG).  But would the fact that her partner claimed ESA (for himself and for her) bring the TA to an end under reg 16 of the conversion regs? http://www.legislation.gov.uk/uksi/2010/1907/pdfs/uksi_20101907_en.pdf 

Leaving aside any issue of whether she might qualify for support group (and EDP etc), would they be at risk of losing a transitional additional of £16.65 per week (couple rates dis premium less WRAG component) by allowing the partner to claim ESA while our client appealed the LCW decision?

we’re stumped ....

Tom H
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There is a risk to the TA(ir). 

The partner’s award of ir-ESA for both himself and the client would be final.  Consequently, it would prevent any ESA that the client may eventually be awarded on successful recon or appeal from continuing beyond the date of the partner’s award.  The client’s ESA, having been restored for a short while, would end the day before the partner’s ESA started by virtue of, as you identify, Reg 16 of the 2010 Regs.  The effect of the latter is to apply, amongst other enactments, Part1 WRA 2007 to the continuing entitlement of the converted ESA. Under section 1(2) WRA2007 as amended by the 2010 Regs themselves, a claimant must continue to satisfy the rule found in para 6(1)(d) of Sch1 WRA that his/her partner is not also claiming ir-ESA.  Only one of their ir-ESA awards could be effective during the same period and I think his, as the later of the two, would prevail under section 17 SSA.  This isn’t a problem if her ESA is restored on reconsideration and the recon has taken less than 12 weeks to make.  In those circs, the partner would immediately end his claim and client would re-apply for ESA.  She would have the Ta(ir) restored by virtue of Reg 21(4)&(5) of the 2010 Regs.

The problem comes if it takes longer than 12 weeks to do the MR or if the MR is unsuccessful and it needs to go to appeal which, again, is likely to take longer than 12 weeks.  It shouldn’t be a problem, of course, because the DWP should simply revise the partner’s ESA under Reg 3(7) D&A if client is eventually successful in having the conversion decision overturned:

“(7) Where–

(a) the Secretary of State… makes a decision under section 8 or 10 awarding a relevant benefit to a claimant (“the original award”); and

(b) an award of another relevant benefit or of an increase in the rate of another relevant benefit is made to the claimant or a member of his family for a period which includes the date on which the original award took effect,

the Secretary of State… may revise the original award” (my emphasis)

Standard ESA is a “relevant benefit” as defined by section 8 SSA 98.  The partner’s ESA could, therefore, be the “original award” under para (a) above.  Converted ESA is not expressly included in the above definition of “relevant benefit” under Section 8.  But I don’t think that’s necessary given Reg 16(3) of the 2010 Regs provides as follows:

“(3) In the application of those enactments [eg the SSA], the conversion decision is to be treated as if it were a decision as to a person’s entitlement to an employment and support allowance which had been made on a claim.”

In other words converted ESA is to be treated as if it were standard ESA.  Converted ESA is, therefore, also a “relevant benefit” under section 8, which would allow any ESA plus TA(ir) awarded to the client on appeal to be an “another relevant benefit” under para (b) above.  The DWP might argue that the word “another” in para (b) means the same benefit, ie ESA, cannot satisfy both paras (a) & (b).  If they’re right, you’d have to argue that standard ESA and converted ESA are different relevant benefits which might cause you problems.  However, whilst “another relevant benefit” is obviously a different benefit to the one awarded in para (a) when it’s awarded to the “claimant” (ie, the partner couldn’t be awarded ESA twice), I think it’s capable of being the same benefit when it’s awarded to “a member of his family”.

An alternative ground for revising the partner’s ESA could be Reg 3(5)(a), ie official error on the ground that the partner could not, himself, have been awarded ir-ESA if his wife was already receiving it.  The DWP’s legal section in my experience argue that it cannot be official error where the decision to award the partner ir-ESA was legally correct when it was made and only shown to be wrong by the tribunal retrospectively awarding the client ESA from the effective date of conversion. But I think they’re wrong (see below).

There’s a good chance, however, that a DM will simply refuse to revise the partner’s ESA under either of the above grounds.  In which case, you may not be able to appeal that refusal as both are any-time revisions. 

Consequently, and it really shouldn’t have to come to this, an option would be to request, within one month of the decision awarding the partner ESA, a MR of that decision on the grounds that the partner’s wife (ie the client) is appealing her ESA and, in order to protect her arrears of the TA(ir) in the event she is successful, the partner intends appealing his own award of ESA.  That MR would have to be considered because it would be in time.  A MR notice would be inevitable because there would, at that stage anyway, be no merits in the MR application, ie the partner’s award would be perfectly valid.  But you could then appeal and have the partner’s and client’s appeals heard together.  The FtT could then lapse the partner’s ESA should it allow the client’s appeal against the conversion decision. 

One of the reasons behind an official error revision, I think, is to avoid the completely unnecessary step of a further appeal, here of the partner’s ESA.  The DWP must be wrong, therefore, about an official error revision not being possible in this situation.  It’s pointless the DWP not revising because the same result can be achieved by joining the appeals.

The one grey area is whether the FtT which hears both appeals either simply declares the partner’s ESA “null and void” or replaces the original decision awarding him ESA made under section 8 SSA with another section 8 decision to the effect that he is not entitled due to the fact his wife, following the tribunal’s decision in the same hearing to allow her appeal, already receives it.  I’ve used “lapse” above to cover either method.

 

[ Edited: 28 Feb 2015 at 09:59 am by Tom H ]
Mary Ward PLE project
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Thanks very much for the reply, Tom.
especially useful in pointing out the possibility of revising partner’s award under D&A regs 3(7)(b)

Luckily, I was panicking prematurely and the more complex considerations won’t be required, as the DWP unexpectedly turned the MR round within the week.  MR requested Friday 27/2, client gets MR notice (not changing decision) in the post Friday morning 6/3—so she can appeal and get assmnt rate ESA.
It’s a mark of how slanted against logic the system is, that I’m thinking of this refusal to change the decision as good news

Again, thanks anyway